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2009 Admonitions



ADMONITION NO. 09-01

CLASSIFICATIONS:
Failing to Seek Client’s Lawful Objectives [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a) and (b)]

SUMMARY:
On July 5, 2007, the Committee For Public Counsel Services (“CPCS”) appointed the respondent to represent the client in the client’s appeal of four criminal convictions.

On July 13, 2007, the respondent filed a motion with the Appeals Court to extend the time in which to file the client’s brief. On July 16, 2007, the respondent’s motion was allowed and the time to file the client’s brief was extended to October 1, 2007. On September 27, 2007, the respondent filed with the Appeals Court a second motion to extend the time to file client’s brief. On the same day, the Appeals Court allowed the respondent’s motion and extended the time in which the brief was to be filed to November 1, 2007. The respondent did not file the brief by November 1, 2007.

In late 2007, the respondent met with the client at the prison where the client was incarcerated. The respondent and the client agreed that the respondent would file with the Appeals Court a motion requesting a stay of the appeal in order to allow the respondent to file a motion for a new trial in the trial court.

On January 9, 2008, the respondent filed with the Appeals Court a motion to stay the client’s appeal pending the filing of a motion for a new trial in the trial court. On January 10, 2008, the Appeals Court entered an order staying the client’s appeal until February 11, 2008. The Court’s order required the respondent to file with the Court a status report on or before February 11th supported by an affidavit of counsel that the motion for a new trial had been filed in the trial court.

The respondent did not file the new trial motion with the trial court and did not file the status report with the Appeals Court.

Between March 1, 2008 and July 1, 2008, the client made repeated unsuccessful attempts to contact the respondent by mail and by telephone. On June 6, 2008, the Appeals Court entered an order that an order of dismissal would be entered if no action was taken in the client’s appeal within thirty days. The respondent did not notify the client of the order or take any action of substance in the matter.

On July 8, 2008, the Appeals Court entered an order dismissing the client’s appeal. Notice of the dismissal was sent to the respondent and to the client.

After receiving notice that his appeal had been dismissed, the client contacted the CPCS and requested the appointment of new counsel. On July 22, 2008, new counsel filed an appearance with the Appeals Court along with a motion to reinstate the appeal. On September 2, 2008, the motion to reinstate the appeal was allowed. On September 24, 2008, new counsel filed the client’s appeal brief. The matter is currently pending in the Appeals Court.

The respondent’s failure to file the client’s appeal brief, her failure to file the motion for a new trial with the trial court, and her failure to file the status report with the Appeals Court violated Mass. R. Prof. C. 1.2(a) and 1.3. The respondent’s failure to respond to the client’s request for information about the status of his case and to notify the client of the status of the matter violated Mass. R. Prof. C. 1.4(a) and (b).

The respondent was admitted in 1992 and had no disciplinary history. The respondent received an admonition for her conduct in this matter conditioned upon the respondent attended a continuing education course designated by bar counsel.


ADMONITION NO. 09-02

CLASSIFICATIONS:
Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Improper Contingent Fee [Mass. R. Prof. C. 1.5c]

SUMMARY:
The respondent represented a client in a personal injury claim on a contingent fee basis. The respondent failed to execute a written contingent fee agreement with the client, and the client and respondent subsequently disagreed on the percentage the client would owe as a fee from the recovery.

In the fall of 2005, the respondent settled the client’s claim for $30,000. The settlement could not then be finalized or paid, however, because the proceeds were subject to a Medicare lien, and the defendant’s insurer would not release any proceeds before the lien was satisfied.

Over the next eighteen months, the respondent asked the Medicare processor for confirmation of the lien amount. The processor did not provide the information until the spring of 2007, when the respondent and the client were informed that the lien was for about $8,200. The client was correctly convinced that the lien was too high and instructed the respondent to appeal or otherwise obtain a reduction. Without any review or inquiry, the respondent told the client that no reduction was possible and that an appeal was therefore unwarranted. In fact, the lien amount calculated by Medicare included substantial charges for unrelated services that should have been excluded. The respondent also failed to keep the client apprised of the status of the case and respond adequately to the client’s ongoing inquiries about the matter.

After the client asked bar counsel to investigate, the respondent reviewed the lien calculations, found the unrelated charges, filed a successful Medicare appeal, and had the lien reduced to about $1,200. The respondent also waived all fees and expenses, as a result of which the client ultimately received virtually all the settlement proceeds.

The respondent’s failure to execute a written contingent fee agreement with the client violated Mass. R. Prof. C. 1.5(c). The respondent’s failure to resolve the Medicare lien competently violated Mass. R. Prof. C. 1.1. The respondent’s failure to keep the client reasonably informed about the status of the matter and respond to his requests for information violated Mass. R. Prof. C. 1.4(a).

The respondent had no history of discipline. He received an admonition for his misconduct in this case.


ADMONITION NO. 09-03

CLASSIFICATIONS:
Unauthorized Practice of Law [Mass. R. Prof. C. 5.5(a)]

SUMMARY:
In 2002, the respondent ceased practicing law and failed to register with the Board of Bar Overseers. On July 26, 2002, the respondent was administratively suspended from the practice of law in Massachusetts for failure to register. The respondent was unaware that he had been administratively suspended.

In or about April 2007, the respondent agreed to represent a client in an ongoing civil litigation matter in New York and performed legal services on the client’s behalf in anticipation of entering an appearance in the litigation.

The respondent subsequently attempted to obtain a certificate of good standing from the Supreme Judicial Court in order to file a pro hac vice motion in New York, and learned that he had been administratively suspended since 2002. The respondent has since been reinstated to practice.

The respondent’s representation of the client while he was administratively suspended from practicing law violated Mass. R. Prof. C. 5.5(a), as well as Supreme Judicial Court Rule 4:02 and Supreme Judicial Court Rule 4:01, § 3.

The respondent has been a member of the Massachusetts bar since 1971 and had received no prior discipline. He received an admonition for his conduct.


ADMONITION NO. 09-04

CLASSIFICATIONS:
Handling Legal Matter Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Act Diligently [Mass. R. Prof. C. 1.3 ]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Withdrawal Without Protecting Client [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
On July 13, 2005, the respondent’s client executed a contingent fee agreement prepared by the respondent for legal services with reference to a claim for personal injuries. The client alleged that on July 1, 2004, she was a pedestrian on a sidewalk on a recently constructed bridge that was maintained by a municipality when she tripped as a result of a two-inch gap in the pavement.

On October 1, 2004, the client first sought treatment as a result of pain she was experiencing in her right shoulder. On April 30, 2005, upon the recommendation of her physician, she had an MRI. The client gave the respondent photographs of the bridge and the results of the MRI and other medical records that indicated that she suffered a right shoulder rotator cuff tear and a left knee patellar contusion. The client further claimed that she suffered acute pain in her shoulder and was unable to lift heavy objects. The client’s delay in seeking treatment and the lack of any eyewitness resulted in an issue as to the causation of the client’s injuries.

The client did not retain the respondent in sufficient time to enable the respondent to give timely thirty-day notice of a claim for personal injury caused by a defect in a public way.

On July 14, 2005, the respondent sent notice to the Town that he was representing the client and demanded that the municipality provide notice of its insurance carrier. The municipality did not respond. The respondent sent a second letter dated August 22, 2005, threatening to file suit for compensation for personal injuries if the municipality did not contact his office. The municipality still did not respond.

On September 30, 2006, the respondent sent his client a letter that informed her that due to the inability to give timely notice, the firm would not be able to pursue a claim against the municipality, but that the firm was looking at designers, engineers and contractors for the construction of the bridge for potential relief. Thereafter, the respondent failed to conduct any meaningful investigation of any claim against any designer, engineer or contractor, including failing to make public records requests for schematics, design, construction or as-built plans, permits or other public documents.

By letter dated June 7, 2007, the respondent notified his client that his office would not undertake further representation in the matter. The respondent informed the client that if she wished to pursue this matter further, she had until June 30, 2007 to file suit. The client either first received or reviewed the letter on or about June 18, 2007, and did not have sufficient time to find counsel to investigate the matter or file a skeletal lawsuit in time to prevent the expiration of the three-year tort statute of limitations.

The respondent’s failure to conduct an adequate investigation, and his failure to diligently investigate the basis of a claim as he had undertaken to do, violated Mass. R. Prof. C. 1.1 and 1.3. By failing to give reasonable notice to his client of his withdrawal, or to allow sufficient time for employment of other counsel, and by failing to take steps to protect the client’s rights prior to withdrawal, the respondent violated Mass. R. Prof. C. 1.4(b) and 1.16(d).


ADMONITION NO. 09-05

CLASSIFICATIONS:
Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
A hearing committee found as follows:

In 2002 a Greek citizen, recently married to a citizen of the United States, retained the respondent to adjust his immigration status to lawful resident. The respondent agreed to file the necessary petitions, but he was unaware that the client was ineligible for relief because, years before, immigration officials had summarily deported him for attempting to enter the United States with a fraudulent Canadian birth certificate and because the client had then re-entered the United States illegally.

The respondent prepared a filing packet that included standard immigration forms. Lacking a passport or a form I-94 entry card as proof of the client’s lawful entry into the United States, the respondent also planned to include a letter from the client, signed under oath, describing his entry. The respondent assigned one of his staff to obtain a date and location of lawful entry and to draft the letter on that basis. The letter the staff member prepared, accurately reflecting information from the client relayed by the client’s spouse, described an entry inconsistent with that related by the client during the respondent’s interview of him and described in the completed immigration forms. The respondent did not notice the inconsistency, and he never pressed the client for an explanation why the client had neither a passport nor an I-94 entry card to document lawful entry. The respondent understood that the client could be interrogated about his entry into the United States at an immigration interview, and the respondent also understood that the client’s credibility during that interview would be crucial.

When the client presented the packet for filing, he was arrested and deported.

On the basis of these findings, the committee concluded that the respondent was negligent in failing to notice the inconsistency between the client’s sworn letter and the completed immigration forms, and by the time the clients were in the respondent’s office to sign papers that included the inconsistent letter, the respondent was negligent in failing to press the client for his passport, for an explanation why the client did not have either his passport or an I-94 card, and for an explanation of the inconsistency. Such conduct violated Mass. R. Prof. C. 1.1 and 1.3. The committee also concluded that the respondent’s related failure to discuss with the client the inconsistencies between the letter and the immigration forms violated Mass. R. Prof. C. 1.1, 1.3, and 1.4.

Bar counsel had charged in addition that: the respondent failed to review and act on notations in the client’s passport and on immigration forms the client completed and returned to him disclosing the client’s deportation; he subjected the client to the risk of arrest by proceeding with immigration filings knowing of the client’s deportation; he failed to supervise his non-lawyer staff; and he failed to draft proper immigration filings. The committee found that the respondent was not shown a passport, that he did not prepare improper papers, that much of the testimony offered in support of these charges lacked credibility, and for these and other reasons found that these charges had not been proved. Because there was no evidence that the contents of the filing packet contributed to the client’s arrest, the committee attributed the client’s arrest and deportation to the client’s own behavior.

The committee considered respondent’s substantial experience as a factor in aggravation.

Neither party appealed the committee’s findings or conclusions. At the Board’s meeting on April 13, 2009, it adopted the committee’s findings and conclusions, along with its recommendation that the respondent receive an admonition.


ADMONITION NO. 09-06

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Safeguard Trust Property Other than Funds [Mass. R. Prof. C. 1.15b3]

SUMMARY:
The respondent, an associate in a firm, represented a client as a defendant in a law suit brought against her by her former fiancé. Before their break-up, the client had conveyed her house to herself and the plaintiff as joint tenants, and the parties had jointly executed a note and mortgage on the property. By a judgment entered in late 2006, the plaintiff was ordered to relinquish his interest in the house upon the client’s “deletion” of the plaintiff from the note and mortgage. The client intended to refinance the mortgage obligation to achieve that purpose.

As of late January 2007, the plaintiff had executed a deed of his interest in the property to the client, but the client was having problems with a refinance due to her poor credit standing. The respondent agreed with the plaintiff’s counsel that the deed would be held in escrow in his office and not recorded until a refinance took place.

In early February 2007, before leaving on a vacation, the respondent turned the case over to a partner in the firm in the event of any problems in his absence. The respondent neglected, however, to inform the partner or anyone else in the firm of the requirements of the judgment or his escrow agreement. He also neglected to identify the deed signed by the plaintiff as property held in escrow or to segregate the deed, instead leaving it loose in the file. While the respondent was away, the client called the partner and demanded the deed. The partner, unaware of the respondent’s escrow agreement or any other impediment to releasing the deed, gave the deed to the client. The client signed and recorded it that same day. As a result, the escrow agreement was breached; the plaintiff’s position was prejudiced; and the client was exposed to liability for violating the judgment.

The plaintiff’s counsel subsequently discovered that the deed had been released and recorded in violation of the escrow agreement and brought a contempt action against the client. In April 2007, the judge ordered the client to reconvey the property. The respondent promptly obtained a deed from the client to herself and the plaintiff and had it recorded, thereby restoring the plaintiff to his former position as joint owner. There was no ultimate harm to either party.

The respondent’s negligent failure to identify and segregate the deed and to inform the partner of the judgment terms and the escrow agreement violated Mass. R. Prof. C. 1.3 (failure to act with reasonable diligence) and Mass. R. Prof. C. 1.15(b)(3) (failure to identify property held for third persons and keep the property appropriately safeguarded).

The respondent was relatively inexperienced at the time of these events. He received an admonition for his misconduct, conditioned on attending a CLE course acceptable to bar counsel.


ADMONITION NO. 09-07

CLASSIFICATION:
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4 (a) and 1.4(b)]

SUMMARY:
The respondent was counsel for a tenant in several landlord-tenant matters. After resolution of other matters, the only remaining issue was the tenant’s counterclaim for damages under c. 93A. The landlord sought to depose the tenant on the counterclaim. The respondent did not communicate effectively with his client about the scheduled deposition, or the landlord’s subsequent motions to compel the client’s attendance and for sanctions, because the respondent hoped to have the case disposed of on his motion for summary judgment.

At a hearing on both the respondent’s motion for summary judgment and the landlord’s motion for sanctions, the court denied summary judgment and ordered the tenant to pay costs and dismissed her 93A claim as a sanction. The dismissal was affirmed on appeal and the respondent ultimately paid the court-ordered sanctions himself. Although the client’s c. 93A claim was dismissed, she suffered no harm because she had no actual c. 93A damages; the respondent was representing the client on a pro bono basis, and the claim was being pursued only for an award of attorneys’ fees, which would have been payable to the respondent.

The respondent’s conduct in failing to maintain adequate communication with his client was in violation of Mass. R. Prof. C. 1.4(a) and 1.4(b). The respondent received an admonition for this misconduct, conditioned on his attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 09-08

CLASSIFICATION:
Improper Disclosure of Confidences of Lawyer’s or Firm’s former Client [Mass. R. Prof. C. 1.9(c)(1)]

SUMMARY:
The respondent began working for an asset location and recovery company in 2005. Part of her responsibilities included researching court records to identify people who might be owed money. In February of 2007, the respondent gave notice to her client of her intent to leave its employment.

During the course of her work for her client, the respondent identified a number of individuals who were each owed money. After she left employment of her former client, the respondent began operating her own asset location and recovery company. Without the knowledge or permission of her former client, the respondent contacted some of the individuals she had previously identified and contracted with them to recover money. Several months later, the former client learned the respondent was competing with her. The respondent subsequently closed her company.

The respondent received an admonition for using confidential information of the former client to her advantage and to the disadvantage of the former client, in violation of Mass. R. Prof. C. 1.9(c)(1).


ADMONITION NO. 09-09

CLASSIFICATION:
Improper Business Transaction with Client [Mass. R. Prof. C. 1.8(a)]

SUMMARY:
Between 2005 and 2008, the respondent represented a client in various legal matters. In approximately 2006, the respondent borrowed $5,000.00 from the client for a personal matter.

Although the respondent orally promised to repay the client, the respondent did not disclose all of the terms of the transaction to the client in writing, he did not give the client an adequate opportunity to seek the advice of independent counsel, and he did not obtain the client’s consent in writing to the transaction and to the conflict of interest involved in his entering into a business transaction with a client.

By entering into a business transaction with a client without transmitting the terms to the client in writing, giving the client a reasonable opportunity to seek the advice of independent counsel, and obtaining the client’s informed consent in writing, the respondent violated Mass. R. Prof. C. 1.8(a).

The respondent has executed a promissory note and an agreement to pay the client $200.00 per month until the debt is repaid, which is satisfactory to the client.

In aggravation, the respondent, who was admitted to practice in 1985, received a private reprimand in 1992 for failing to maintain a disputed portion of a fee in a clients’ account, wrongful retention of a client’s funds and failure to refund an unearned fee. Private Reprimand No. PR-92-29, 8 Mass. Att’y Disc. R. 319 (1992).

The respondent received an admonition for his conduct, conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 09-10

CLASSIFICATION:
Unauthorized Practice of Law [Mass. R. Prof. C. 5.5(a)]

SUMMARY:
In 2006, the respondent ceased practicing law and failed to register with the Board of Bar Overseers. On April 21, 2006, the respondent was administratively suspended from the practice of law in Massachusetts for failure to register.

On September 29, 2008, without thinking about the administrative suspension, the respondent entered an appearance in the district court for a family friend. At the outset of the hearing, it was brought to the respondent’s attention that her registration was not current. Although the court gave the client the option of a continuance, the client elected to go forward on that date without representation. Thereafter successor counsel entered an appearance for the client and the respondent withdrew. The respondent had no other clients.

The respondent’s representation of a client while she was administratively suspended from practicing law violated Mass. R. Prof. C. 5.5(a). The respondent accordingly received an admonition.


ADMONITION NO. 09-11

CLASSIFICATIONS:
Handling Legal Matter When Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16d]

SUMMARY:
On or about April 22, 2008, the respondent agreed to represent a client who claimed that she had been the victim of identity theft and bank fraud at several major banks. Although the client could provide no details or documentation to support her claims, the respondent agreed to represent the client in the matter. The respondent failed to inform the client that proof of identity theft and bank fraud would be extremely difficult without any documentation that she had been victimized as claimed. The respondent’s failure to explain the matter to the extent necessary to permit the client to make an informed decision about the representation violated Mass. R. Prof. C. 1.4(b).

The respondent proposed to hire a financial investigator to look into the client’s claims. The client agreed to pay the respondent an hourly fee of $195 per hour, and to pay for the investigator’s services. The respondent introduced the client to a man whom the respondent proposed to hire to investigate the client’s claims. The respondent did not know anything about the man’s background. Unknown to the respondent, the man had no qualifications as an investigator. By failing to make any reasonable inquiries into the qualifications of a proposed investigator and to advise the client that he had no information regarding the investigator’s qualifications and background, the respondent failed to provide competent representation to the client in violation of Mass. R. Prof. C. 1.1 and to explain the matter properly to the client in violation of Mass. R. Prof. C. 1.4(b).

Over the next few weeks, the client paid the respondent a $4,000 retainer, and the respondent paid the investigator $2,900. After several weeks, the investigator falsely reported to the respondent that settlements with two of the banks were imminent. The respondent failed to take any action to independently corroborate the investigator’s reports before providing this information to the client. By failing to diligently investigate his client’s claims, handle her legal matter with adequate preparation, and explain to the client that he had not verified the investigator’s claims, the respondent violated Mass. R. Prof. C. 1.1, 1.3, and 1.4(a) and (b).

By June of 2008, the respondent began to have serious concerns about the legitimacy of the client’s claims and about the client’s mental stability. On June 24, 2008, the respondent notified the client that he was going to terminate the representation. The respondent returned the client’s file, and also offered to return the investigator’s fee if he did not receive a report from the investigator within one week. Thereafter, although the respondent did not receive a report from the investigator, the respondent failed to reimburse his client for the investigator’s fee. The respondent’s failure to promptly refund the unearned portion of the fee upon termination of his representation violated Mass. R. Prof. C. 1.16(d).

The respondent was admitted to practice in 2002, but had only been practicing as a solo practitioner since 2007. The respondent had no prior discipline. After the client filed a request for investigation with the Office of Bar Counsel, the respondent returned his entire fee and the investigator’s fee to the client.

The respondent received an admonition for his conduct, conditioned upon attendance at a CLE course designated by bar counsel.


ADMONITION NO. 09-12

CLASSIFICATION:
Holding Out as a Specialist [Mass. R. Prof. C. 7.4(a)]

SUMMARY:
The respondent was admitted to practice in New York in 1991, and in Massachusetts in 2004. The respondent was employed as an attorney in New York, Beijing and Hong Kong from 1991 to 2002, but did not practice in the area of immigration law.

After moving to Massachusetts in 2004, the respondent opened his own law firm. Sometime thereafter, the respondent created a website for the purpose of advertising his legal services, and caused it to be disseminated on the internet. On the website, the respondent represented that he provided “professional legal services to American and international clients with respect to corporate and commercial transactions, small business matters and immigration law matters.” As of April, 2005, the respondent had represented only a handful of clients in immigration matters and did not have the experience of a specialist in the field of immigration law. The respondent had, however, attended continuing legal education courses on immigration law matters, and conducted self-study.

In April 2005, a Canadian citizen, who was residing and working in the United States as a dentist, learned of the respondent and his immigration practice through his website. The dentist was in the United States on a TN (nonimmigrant NAFTA professional) visa that was due to expire on January 15, 2006. The dentist was contemplating becoming the sole owner of the dental practice for which he worked. He engaged the respondent to advise him about his options for obtaining a visa that would allow him to do so.

The respondent conducted research on the relevant legal issues, but did not consult with a more experienced immigration law attorney before providing advice to the client. As a result of his lack of expertise, the respondent gave the client the erroneous advice to apply for a B-1 Business Visitor visa. The respondent advised the client that he could not engage in any unauthorized employment, but failed to advise the client that he could not continue to treat patients after his TN visa expired and while his B-1 application was pending. The respondent should have advised the client that a non-immigrant may not engage in productive work in the United States without a visa allowing him to do so.

As a result of the respondent’s failure to give the client adequate advice, the client illegally continued to treat patients after his visa expired. The respondent, on behalf of the client, subsequently applied for and obtained an E-2 visa that allowed the client to enter the U.S. to direct the operation of an enterprise in which he has invested.

By holding himself out as a specialist in immigration law, the respondent made a misleading statement about the extent of his expertise in that field, in violation of Mass. R. Prof. C. 7.4(a).

The respondent had no prior history of discipline. He received an admonition for his conduct and has removed immigration law from his website and other public communications under his control as a field of law in which he practices.


ADMONITION NO. 09-13

CLASSIFICATION:
Improper Disclosure of Confidential Information [Mass. R. Prof. C. 1.6]
Improper Disclosure of Confidences of Lawyer’s or Firm’s Former Client [Mass. R. Prof. C. 1.9c]

SUMMARY:
The respondent represented a client as plaintiff in a civil action against a construction firm for allegedly faulty home repairs. The client’s wife and the respondent were acquaintances as they were attorneys in the same locale. The matter was resolved and settled in 2005.

Also in 2005, the client and his wife commenced divorce proceedings. Both parties were represented by counsel other than the respondent.

In or about January 2006, the client’s wife asked the respondent to submit an affidavit on her behalf to the probate court stating her observations of the client and their marriage. The respondent filed an affidavit with the probate court as to the client’s character in an effort to help the client’s wife. The affidavit detailed matters concerning the client that the respondent knew from the prior representation and that reflected poorly on him. However, the respondent’s affidavit did not affect the outcome of the divorce case.

By submitting the affidavit to the court, the respondent improperly disclosed confidential information regarding her prior client in violation of Mass. R. Prof. C. 1.6 and 1.9(c). The respondent has been a member of the Massachusetts bar since 1989 and has received no prior discipline. The respondent received an admonition for her conduct, conditioned on attending a CLE program designated by Bar Counsel.


ADMONITION NO. 09-14

CLASSIFICATION:
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4 (a) and (b)]
Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4 (c)]
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4 (h)]

SUMMARY:
In June 2006, the respondent was retained to represent a defendant corporation in a civil action. The matter was first scheduled for trial on September 14, 2007, but the respondent sought and obtained two continuances of the trial. The respondent was ready to proceed at trial on May 16, 2008.

On May 12, 2008, the plaintiff’s counsel asked the respondent to agree to postpone the trial until after Labor Day because his client’s principal witness was out of the country and unable to return in time for the trial. As a professional courtesy, the respondent agreed to the postponement without securing his client’s permission in advance or informing the client of his accommodation to opposing counsel. On May 13, 2008, plaintiff’s counsel filed an assented-to motion to reschedule the trial date. The court granted the motion and set the case for trial on September 5, 2008.

On May 12, 2008, the respondent called the general manager of the client corporation to inform him that the trial had been postponed. The general manager was to testify at the trial and had already booked reservations on a flight to Boston. The general manager asked the respondent to explain the reason for the postponement, and the respondent falsely told him that “the judge had had a heart attack.”

The president of the corporation was skeptical about the respondent’s explanation for the postponement and contacted the court directly. A clerk told the president that the plaintiff had filed a motion to continue the trial date assented to by the respondent.

The general manager called the respondent to request a letter explaining the reason for the postponement. The respondent thereafter sent two separate letters confirming his false representations to the client.

The respondent’s conduct in misrepresenting to his client the reason for the postponement of the trial violated Mass. R. Prof. C. 1.4(a) and (b) (lawyer shall keep client reasonably informed about status of matter and explain matter to extent necessary to permit client to make informed decisions about representation), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and (h) (conduct adversely reflecting on fitness to practice law).

The respondent’s misconduct did not cause any ultimate harm to his client. The respondent was admitted to the bar in 1975 and has no history of discipline. He received an admonition for his misconduct.


ADMONITION NO. 09-15

CLASSIFICATION:
Failing to Seek Client’s Lawful Objectives or Abide by Client’s Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]

SUMMARY:
The respondent worked at a firm that concentrated in plaintiff’s personal injury cases. In August of 2004, an MBTA bus was involved in a collision with a car. The client was one of several bus passengers injured as a result of the collision.

The respondent took over responsibility for the client’s case in late 2005. Before filing suit, the respondent obtained the MBTA report of the accident, which contained the MBTA’s position that the other motorist was at fault. The respondent filed suit on behalf of the client against the MBTA in May of 2006. The respondent did not review the file or the MBTA accident report before filing suit and failed to join the other motorist.

The respondent first learned of a potential claim against the other motorist when the MBTA asserted such a claim in a third-party complaint in response to the respondent’s suit. By that time, however, the other motorist’s carrier had paid out her entire policy limits to other bus passengers who had been injured in the accident. Subsequent counsel for the client later settled her claim against the MBTA. The respondent has paid the client, out of his own funds, an amount that represented the pro rata share of the other motorist’s policy that the client would have received if the respondent had made a timely claim against the other motorist on her behalf.

The respondent received an admonition for failing to seek the lawful objectives of the client and for failing to act with reasonable diligence and promptness in representing a client, in violation of Mass. R. Prof. C. 1.2(a) and 1.3.


ADMONITION NO. 09-16

CLASSIFICATION:
Improper Financial Assistance to Client [Mass. R. Prof. C. 1.8e]

SUMMARY:
The respondent represented a client in claims for severe injuries sustained by the client as a passenger in a two-car collision. While the claims were pending, the client was in severe financial distress. The respondent made a total of $7,500 in loans from his personal funds to the client for the client’s living expenses. After settlement of the claims, the respondent repaid himself for these advances from the client’s settlement proceeds.

The respondent made the loans out of concern for the client’s financial situation. Regardless of the circumstances or the respondent’s motives, however, his advances of financial assistance to the client violated Mass. R. Prof. C. 1.8(e).

The respondent had no history of discipline. He received an admonition for his misconduct in this case.


ADMONITION NO. 09-17

CLASSIFICATION:
Improper Contingent Fee [Mass. R. Prof. C. 1.5c]
Withdrawal of Fees Without Accounting [Mass. R. Prof. C. 1.15d2]

SUMMARY:
On or about December 9, 2005, the respondent agreed to represent a client with a potential lender liability claim against a bank. The respondent and the client agreed to a one-third contingent fee arrangement, but the respondent never documented the fee agreement in writing. The client also agreed to pay the respondent an advance payment of $7,500, which was to cover the respondent’s fees and costs for investigating the client’s claims. The $7,500 advance payment was to be credited against the respondent’s one-third contingent fee in the event of any recovery.

The client paid the respondent $3,000 on February 8, 2006, and $4,500 on March 3, 2006. The respondent paid himself for work he performed from the funds he received from the client. The respondent kept time records, but did not submit itemized bills to the client at or before the time he paid himself for the work he had done investigating the claim.

On or about August 3, 2008, shortly before the statute of limitations was due to expire on the client’s claim, the respondent advised the client that he had determined that the client’s claim was not viable. After consultation with the respondent, the client agreed with his determination.

By entering into a contingent fee agreement with a client without reducing the agreement to writing, the respondent violated Mass. R. Prof. C. 1.5(c). By making payments to himself for his legal fees without delivering to the client, on or before the date the fee payments were made, an itemized bill or other accounting showing the services rendered, written notice of the amount and dates of the payments, and a statement of the balance of the client’s funds being held in the lawyer’s trust account after the payments, the respondent violated Mass. R. Prof. C. 1.15(d)(2).

The respondent received an admonition for his conduct in this matter.


ADMONITION NO. 09-18

CLASSIFICATION:
Mass. R. Prof. C. 1.6 (a) (Improper Disclosure of Confidential Information)

SUMMARY:
In June 2007, a client retained the respondent to organize and review his company’s tax records and to prepare both state and federal tax returns for the preceding ten-year time period. In the fall of 2008, the respondent filed the tax returns. In addition, the respondent assisted the client in setting up payment plans with state and federal authorities.

In May of 2009, the client sought a refund of his retainer from the respondent, claiming that the respondent’s bill was excessive and that the respondent had failed to finalize settlements with the state and federal authorities. The respondent denied any failure and refused to refund any portion of the retainer. Thereafter, the client created a posting on an Internet bulletin board highly critical of the work done and the fee charged by the respondent.

The respondent learned of the client’s posting from another attorney. After reading the posting, the respondent responded with a posting of his own denying the client’s claims and disclosing the client’s purported substance abuse and other highly confidential information that the respondent had gained during the course of the representation. This information was not necessary to defend the respondent against claims of wrongdoing.

The respondent’s disclosures of the confidential information relating to the representation of the client violated Mass R. Prof C. 1.6(a).

The respondent was admitted in 2002 and had no prior discipline. The attorney received an admonition for his conduct in this matter.


ADMONITION NO. 09-19

CLASSIFICATION:
Improper Contingent Fee [Mass. R. Prof. C. 1.5(c)]
Trust Account Commingling [Mass. R. Prof. C.1.15(b)(1)]

SUMMARY:
On September 5, 2003, the respondent’s client was seriously injured in a motor vehicle accident. The respondent and client orally agreed that the respondent would represent the client in making a claim and in potential litigation against the driver of the other vehicle in the collision. The respondent intended to collect a contingent fee, but did not cause a written contingent fee agreement to be drafted or signed.

The respondent filed a personal injury suit on behalf of the client. The case was settled in 2006. The respondent deposited one of the settlement checks into his business account, in which he held personal funds, thereby commingling client and personal funds. The respondent then wrote a check to the client from the business account in the amount of the funds due to the client.

By failing to enter into a written contingency fee agreement with the client, the respondent violated Mass. R. Prof. C. 1.5(c).

By depositing client funds into his business account, and commingling client and personal funds in that account, the respondent violated Mass. R. Prof. C. 1.15(b).

The respondent was admitted to the bar in 1987 and had no prior history of discipline. He agreed to refund $2,000 of his contingent fee to the client. The respondent received an admonition for his conduct conditioned on obtaining training in trust accounting.



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